Reverb.com, LLC v. Raisa Konchiza / Anna Fortunova / Anna Kerdo
Claim Number: FA2209002011154
Complainant is Reverb.com, LLC (“Complainant”), represented by David A.W. Wong of Barnes & Thornburg LLP, Indiana. Respondent is Raisa Konchiza / Anna Fortunova / Anna Kerdo (“Respondent”), RU.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <reverb-payments.online>, <reverbpayments.net>, <reverbpp.com> and <reverb-support.online>, registered with Registrar of Domain Names REG.RU LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 7, 2022; the Forum received payment on September 7, 2022.
On September 9, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <reverb-payments.online>, <reverbpayments.net>, <reverbpp.com> and <reverb-support.online> domain names are registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the names. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 13, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 3, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@reverb-payments.online, postmaster@reverbpayments.net, postmaster@reverbpp.com, and postmaster@reverb-support.online. Also on September 13, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant provides an online platform to buy and sell new, used, and vintage musical instruments. Complainant asserts trademark rights in the word REVERB, both alone and combined with certain descriptive words such as REVERB PAYMENTS, REVEB PRICE GUIDE, and others through use in commerce dating back to 2010 and through various registrations of the marks with the United States Patent and Trademark Office (USPTO) (e.g., Reg. No. 4,730,382, registered May 5, 2015), the EUIPO (e.g., Reg. No. 014943501 registered September 27, 2016), and others. Respondent’s domain names, registered between April 7, 2022 and July 13, 2022, are identical or confusingly similar to one or more of Complainant’s REVERB marks as they incorporate the mark in its entirety, only adding letters or generic terms, along with generic top-level domains (gTLD) like “.com”, “.online” or “.net”.
Respondent lacks rights or legitimate interests in the disputed domain names. Complainant has not authorized or licensed Respondent to use the REVERB mark, nor is Respondent commonly known by the disputed domain names. Further, Respondent is not using the disputed domain names in connection with a bona fide offering of goods and services and it is not making a legitimate noncommercial or fair use thereof, as Respondent attempts to impersonate Complainant to trick consumers into transferring money to Respondent.
Respondent registered and uses the disputed domain names in bad faith as it to impersonate Complainant and steal money from Internet users and/or Complainant’s customers.
B. Respondent
Respondent failed to submit a Response in this proceeding.
- Complaint has rights in the REVERB trademark and each of the disputed domain names is confusingly similar to such mark;
- Respondent’s use of the disputed domain names to operate a scheme in which it impersonates Complainant and seeks to obtain illicit payments from users does not provide it with any rights or legitimate interests; and
- Respondent’s activities, as noted above, indicate that it registered and uses the disputed domain names in bad failth.
PRELIMINARY ISSUES
Multiple Respondents
In the instant proceedings, Complainant has alleged that, despite the listing of different Registrants in the respective WHOIS records, the disputed domain names at issue are effectively owned or controlled by the same domain name holder which is operating under several aliases. It then requests that these multiple domain names be consolidated into the present proceeding. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Despite being presented with WHOIS records that name different Registrants, prior Panels have held that consolidation of a case against multiple domain names is appropriate where there are other similarities that indicate a likelihood of common ownership. See, e.g., American Airlines, Inc. v. Ramadhir Singh, WhoisGuard Protected, WhoisGuard, Inc. / Reema Gupta, Ballu Balwant, Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Lucy Lionel, Lucy99, Red Keep, D2021-0294 (WIPO Mar. 11, 2021) (consolidation upheld based on “the similar content and layout of the websites that were linked to the disputed domain names; the fact that all the disputed domain names target a specific sector and the same trademark within this sector; the similar patterns in the disputed domain names; and the identical reaction of the Respondents to the Complaint, not replying to the Complainant’s contentions.”); Brooks Sports, Inc. v. Shuai Li / Nan Zhang, FA 1932371 (Forum Mar. 18, 2021) (similar website content, use of same registrars and privacy services).
Complainant contends that, despite their respective WHOIS records listing different Registrant names, the disputed domain names are controlled by the same entity because i) all three were registered with the same registrar, ii) all were registered within a four-month timespan, iii) two of the domains share the same registrant information; iv) all four domains identify Moscow, Russia as the registrant’s address; v) all use the same email server address, i.e., @rambler.ru; vi) all use 10 character email usernames that appear to have been randomly generated; and vii) they are being used in concert with one another to impersonate Complainant as part of an ongoing scheme.
In light of the above similarities and intersections, and in the absence of participation in these proceedings by any party claiming to be a Registrant of these domain names, the Panel determines it is more likely than not that all of the disputed domain names are under common control by the same domain name holder. As such, there is no inequity in consolidating these domain names into the present case, which will proceed against all four of them, and their holder will be referred to in the singular as “Respondent”.
Language of the Proceedings
The Panel notes that the Registration Agreement for the disputed domain name is written in Russian, thereby initially making this the language of the proceedings pursuant to Rule 11(a). However, Complainant requests that this Panel exercise its discretion, under Rules 10(b) and (c) and determine that English be the language of the proceedings. In favor of its request, the Panel notes that the disputed domain name is comprised, in large part, of the REVERB mark and the English words “payment” or “support” which do not convey any meaning in the Russian language. Further, Complainant notes that Respondent’s infringing websites and solicitation messages appear in the English language. Finally, the Forum has provided notice of this case to the Respondent in both Russian and English, yet the Respondent has not provided a Response or made any other submission in this case. In light of the above-mentioned circumstances and the delay and further expense that would be caused from requiring that Complainant to submit documents in Russian, the Panel determines that the remainder of these proceedings may be conducted in English without prejudice to the Respondent.
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the REVERB mark through its registration with the USPTO, the EUIPO, and others. When a complainant registers a mark with such national or trans-national trademark offices, it is sufficient to establish rights in the mark. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”) Complainant provides copies of some of its trademark registration certificates and the Panel finds that it has sufficiently established rights in its claimed REVERB mark.
Next, Complainant argues that each of Respondent’s disputed domain names is identical or confusingly similar to one or more of Complainant’s REVERB marks, as it incorporates the mark in its entirety, only adding certain letters or generic words, along with a gTLD. The mere addition of a generic term and gTLD is most often not sufficient to differentiate a disputed domain name from a mark. See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”) Additionally, adding letters may not distinguish the disputed domain name from the mark that it incorporates. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name copies the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”) As each of the disputed domain names incorporates the entirety of the REVERB mark and only adds non-distinguishing elements, the Panel finds that each is identical or confusingly similar to Complainant’s REVERB mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain names because Respondent is not authorized to use the REVERB mark, nor is Respondent commonly known by the disputed domain names. Past panels have looked at the available WHOIS information when considering whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Furthermore, lack of authorization to use a mark serves as an additional indication that a respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 1919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists ‘er nong wu’ as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”) The WHOIS information for the disputed domain names reflects Respondent’s name variously as “Raisa Konchiza”, “Anna Fortunova”, and “Anna Kerdo” and there is nothing in the record to suggest that Complainant has authorized Respondent to use the REVERB mark. Therefore, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the disputed domain names for a bona fide offering of goods and services and that it does not make a legitimate noncommercial or fair use thereof because the disputed domain names and their resolving websites attempt to impersonate Complainant and defraud users. Using a disputed domain name in the manner claimed by Complainant is not a bona fide offering of goods and services or legitimate noncommercial or fair use. See President and Fellows of Harvard College v. Michael S. George / Harvard Business Council, FA 2003542 (Forum Aug. 25, 2022) (“The impersonation of a complainant in conjunction with a phishing scheme may indicate a lack of rights or legitimate interest in a disputed domain name.”) citing Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006); Opportunity Financial, LLC v. James Slavin, FA 2008765 (Forum Sep. 23, 2022) (no legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where “Respondent uses the disputed domain name’s resolving webpage to impersonate Complainant through the prominent use of Complainant’s mark and logo.”) In the present case, Respondent attempts to impersonate and pass itself off as Complainant via email messages, at the websites which resolve from the disputed domain names, and an online chat function at these websites. Complainant submits into evidence screenshots of emails which it claims were sent by Respondent to unsuspecting users. These messages contained links to one of the websites of the disputed domain names and contained messages such as “You are one step away from completing your order”. The submitted images of Respondent’s websites indicate that these are close copies of Complainant’s own www.Reverb.com site including images of musical instruments and related accessories being offered for sale along with brief descriptions and prices for each. Finally, Complainant’s evidence includes screenshots of a chat service which is included in Respondent’s websites and which display messages such as “Our system detected a problem with your order, can you please tell me what type of payment have you used?” It then requests that the user send this information to the email address “payment@reverbpp.com”. For its part, Respondent has not filed a response or made any other submission in this case and so it does not seek to clarify or explain its activities. As Complainant has made a prima facie case which has not be rebutted, the Panel finds, by a preponderance of the evidence, that Respondent is not using the disputed domain names in compliance with Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered the disputed domain names in bad faith based upon its actual knowledge of Complainant’s rights in the REVERB marks. Under Policy ¶ 4(a)(iii), incorporating a mark into a domain name and using it to impersonate a complainant can serve as evidence of bad faith registration based upon a respondent’s actual knowledge of the asserted mark. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”) Complainant asserts that “[t]he identical nature of Respondent’s infringing trademark makes clear that Respondent was aware of Complainant and its business at the time that it registered the Disputed Domain Names, that such knowledge prompted the registrations for the purpose of perpetrating fraud, and that Respondent then used the Disputed Domain Names to cloak itself in Complainant’s identity.” From the evidence supporting this claim, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the REVERB marks.
Complainant next argues that Respondent registered and uses the disputed domain names in bad faith because Respondent attempts to attract users for commercial gain by passing itself off as Complainant via email and at the resolving websites. Under Policy ¶ 4(b)(iv), impersonating and passing oneself off as a complainant is a clear indication of bad faith. See Totango, Inc. v. 林 凡, FA 2008671 (Forum Sep. 16, 2022) (“The Panel agrees and finds that Respondent engages in a phishing scheme, demonstrating bad faith under Policy ¶¶4(b)(iii) and (iv).”); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Here, the Panel references the above-mentioned screenshots of the resolving websites, a chat session, and emails sent using the disputed domain names, all of which appear designed to encourage users to make illicit payments to Respondent under the mistaken impression that the user is dealing with Complainant. Respondent has not participated in these proceedings and so it does not dispute this evidence or Complainant’s characterization thereof. Based on the information and evidence before it, the Panel finds it highly likely that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <reverb-payments.online>, <reverbpayments.net>, <reverbpp.com> and <reverb-support.online> domain names be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: October 17, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page